Jesse Ventura: Was he punched? Will there be a trial? Judge to decide

This combination of file photos shows Chris Kyle, left, former Navy SEAL and author of the book "American Sniper" on April 6, 2012, and former Minnesota Gov. Jesse Ventura, right, on Sept. 21, 2012. Kyle claims in his book that he decked Ventura in 2006 over unpatriotic remarks he says Ventura made. Ventura says the punch never happened. (AP Photo/File)

It may be that only two people really know for sure what happened in a California bar in 2006. One of them is dead. The other has made a career of bombast.

But the versions of events told by the late Chris Kyle and former Gov. Jesse Ventura could not be more different. Kyle, a decorated military sniper and best-selling author, claimed he punched Ventura for being a loudmouth. Ventura -- himself a former member of the Navy's elite special forces and no stranger to best-seller lists -- says it never happened.

On Wednesday, a federal judge in St. Paul will listen as lawyers for Kyle's widow argue that Ventura's defamation lawsuit be thrown out. They contend the 2-year-old suit fails as a matter of law and a matter of evidence.

Lawyers for Ventura say plenty of evidence supports the case, that the law is on their side and that the trial, loosely scheduled to begin May 1, should proceed.

If there is a trial, there'll be no courtroom showdown between the two protagonists. Kyle and a friend were shot and killed a year ago this Sunday by a former Marine. Kyle, who opened a private security firm after he left the Navy SEALs, had taken the man to a gun range in hopes that target practice would help the man deal with post-traumatic stress.

"There are a lot of interesting aspects to this case," said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. "One of the things that captures the imagination a bit is that the guy who wrote the book is no longer living."

The lawsuit was born of a 412-word passage in "American Sniper," Kyle's best-selling 2012 memoir about his exploits during four tours of duty in Iraq and his return home in 2009. In the excerpt, he wrote that he decked a loutish bar patron he identified as "Scruff Face" in a Coronado, Calif., pub during a wake for a fallen comrade.

Kyle claimed the man took the first swing after he was told to pipe down.

In interviews on his book tour, Kyle said "Scruff Face" was Ventura. Although Ventura's lawyers had taken sworn testimony from Kyle three months before the fatal shooting, some of what Kyle knew died with him.

"Since Chris Kyle is no longer living, his credibility ... is reduced to written pleadings, depositions and affidavits filed by other people, and I think that's going to make it somewhat problematic for a judge to deal with," said Kirtley, a lawyer whose expertise is in media law.

She said she didn't want to predict what U.S. District Judge Richard Kyle (no relation to the defendant) might do, but "I think there are factual issues that may make a judge reluctant to grant a summary judgment at this point."

Ventura has continued his suit against Kyle's widow, Taya Kyle, as executrix of her late husband's estate. Ventura's claim is threefold: He says the book defamed him, that Kyle misappropriated his name to boost sales and that Kyle unjustly made money off the bar tale.

In December 2012, Judge Kyle rejected a motion for partial summary judgment on the misappropriation and unjust-enrichment counts. The judge said he couldn't dismiss Ventura's claims because they depended "on the truth or falsity of Kyle's statements, which the court cannot decide at this stage."

In the 13 months since then, though, both sides have filled the court docket with depositions and affidavits and photographs from people who said they were with Kyle or Ventura that October 2006 night at McP's Irish Pub & Grill in Coronado.

Many sworn statements come from people who served in the Navy's special forces. Some, like Kyle, were SEALs. Others, like Ventura, served as part of the Underwater Demolition Teams, which were later merged into the SEALs.

After a career in professional wrestling, Ventura was elected mayor of Brooklyn Park and served a single term as Minnesota's governor. Since leaving office, he's written books, been a visiting fellow at the Institute of Politics at Harvard University's John F. Kennedy School of Government and has hosted a cable TV show focusing on his favorite pastime, the study of conspiracies.

That pedigree makes him a public figure. As such, the law demands more from him when he sues for defamation, libel and slander. Not only must Ventura show that what Kyle wrote was false, but he must prove Kyle acted with "actual malice," knowing that what he was writing was untrue.

"Ventura cannot carry either burden," lead defense attorney John Borger wrote last December in a legal memo in support of Taya Kyle's motion for summary judgment.

He told the judge that "the only evidence Ventura has produced to try to prove falsity -- an essential element of his claim -- is his own denials and the testimony of witnesses who were not present on the night in question. That showing is neither clear nor convincing."

But in a reply memo filed this month, Ventura's lead attorney, David Bradley Olsen, argued that Kyle's fabrication of the punch story was itself evidence of actual malice.

"Kyle was not a third-party publisher that relied on reporters who subjectively believe what others had told them about what supposedly happened," Olsen wrote. "Kyle, instead, wrote an alleged first-hand account of his participation in an October 2006 altercation at McP's Irish Pub."

Kirtley said that untangling the witness statements could be "interesting" and that a judge might find it difficult to sort through them without getting a chance to judge the credibility of the witnesses.

"The reason I say that's particularly interesting in the context of a defamation case is that so much of the case is a he said/he said situation," she said.

"It's a tough one," Kirtley said, "because the guy who wrote the book is no longer there to be able to talk to people and give whoever the finder of fact is the chance to judge his credibility. Jesse Ventura is with us, so that makes it more complex."